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R v Sleiman

R v Sleiman

Case [2003] NSWCCA 231 21 August 2003

Criminal Liability

Judicial Review

Miscarriage of Justice

Dying Declaration

Admissibility of Evidence

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CITATION: Regina v Emad Sleiman [2003] NSWCCA 231

HEARING DATE(S): 6/11/02;2/12/02;17/2/03;18/2/03;19/2/03

JUDGMENT DATE:
21 August 2003

JUDGMENT OF: Sully J at 1; Dunford J at 91; Kirby J at 92

DECISION: Appeal against conviction dismissed.

LEGISLATION CITED: Evidence Act 1995 (NSW)

CASES CITED: Mickelberg v The Queen (1989) 167 CLR 259 at 273
R v PLV (2001) 123 A Crim R 194
R v Bikic [2002] NSWCCA 227
Gilbert v The Queen [2000] CLR 414
McClean v Commonwealth of Australia, unreported, 27 June 1996
Regina v M [2002] NSWCCA 66
Ratten v The Queen (1974) 131 CLR 510
Lawless v The Queen (1979) 142 CLR 659
Gallagher v The Queen (1985) 160 CLR 392
R v William Woodcock (1789) 1 Leach 500; 168 ER 352
R v Salama [1999] NSWCCA 105
R v Rose (2002) 55 NSWLR 701

PARTIES :
Regina
Emad Sleiman

FILE NUMBER(S): CCA 60505/99

COUNSEL: P. G. Ingram - Crown
P. Kintominas - Appellant

SOLICITORS: S. E. O'Connor - Crown
Kekatos Lawyers - Appellant

LOWER COURTJURISDICTION: Supreme Court

LOWER COURT FILE NUMBER(S): 70216/98

LOWER COURT
JUDICIAL OFFICER : Sperling J

60505/99

SULLY J
DUNFORD J
KIRBY J
Thursday 21 August 2003

REGINA v EMAD SLEIMAN

Judgment

1 SULLY J:

Introduction

2 At the conclusion of the Crown case, Sperling J directed the acquittal of Mr. Kalache. The joint trial of the appellant and Miss Cassar continued to verdict. The jury found each of them guilty as charged.

3 The appellant was subsequently convicted and sentenced to a substantial term of imprisonment. He now appeals against that conviction. He does not apply for leave to appeal against sentence.

The Crown Case at Trial

4 Shortly after 4.00 a.m on Sunday, 18 May 1997, Jason Burton was stabbed fatally. The stabbing took place outside the General Bourke Hotel at Parramatta. The essence of the Crown case at trial was that the fatal wounds had been inflicted by the appellant, and with intent either to kill or to inflict grievous bodily harm.

5 Fundamental to the Crown case was evidence given at trial by Mr. Adam Stacey who had been employed, at the relevant time, as security manager at the General Bourke Hotel. The written summary of trial lodged by the Crown in connection with the present appeal contains a convenient and comprehensive survey of the evidence given by Mr. Stacey. That evidence is significant in connection with two in particular of the grounds of appeal; and it provides the essential factual background of all of the grounds of appeal. It is, therefore, expedient to reproduce the summary, which is:

Adam Stacey

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Sleiman

Details

AGLC: R v Sleiman [2003] NSWCCA 231
Case: [2003] NSWCCA 231
Decision Date: 21 August 2003

CaseChat Overview and Summary

Emad Sleiman appeals against his conviction for the murder of Jason Burton, arguing that the trial judge misdirected the jury regarding the dying declaration of the deceased, that the trial miscarried due to the admission of evidence from Sgt. Garry Buckley, that the judge erred in failing to leave manslaughter to the jury, and that there is fresh evidence that Hassan Kalache, his co-accused, confessed to the murder. The Court of Criminal Appeal dismisses the appeal against conviction. Regarding the dying declaration, the Court finds no error in the trial judge's direction, as it appropriately identified issues the jury should consider when dealing with hearsay evidence. The Court also finds no merit in the appellant's claim that the trial miscarried due to the admission of Sgt. Buckley's evidence, as the evidence was relevant to the case. The Court rejects the argument that the trial judge should have left manslaughter to the jury, finding that the evidence supported a conviction for murder. Lastly, the Court holds that the proposed fresh evidence from Hassan Kalache is not credible and would not likely lead to an acquittal, as it is contradicted by other evidence and the circumstances surrounding its emergence suggest a connection to the appellant's receding prospects on appeal.

Orders